VIJAYCHANDRA PRABHATILAL SHARMA Vs. MANEK METAL SYNDICATE BOMBAY

JUDGEMENT

(1.) Manek Metal Syndicate - the respondent in this revision application filed Summary Suit No. 7034 of 1980 in the City Civil Court at Bombay against variety Body Builders a partnership firm for recovering Rs. 10-10-1936 with interest and costs. The suit was decreed ex-parte for an amount of Rs. 12905-32. It appears that the decree-hide. recovered Rs. 5750.00 form two partners of the said firm. As the remained amount of Rs. 7155-32 could not be recovered by the decree-holder it filed Execution Application in the City Civil Court and got the same transferred to the District Court at Baroda. That Court transferred the said decree to the Court of Civil Judge (S.D.) Vadodara for execution. The learned Civil Judge issued Jangam warrant for the properties of the partnership firm but is no property belonging to the partnership was found at the place mentioned in the warrant the decree-holder applied to that Court to issue notices to Prabhatilal Sharma Jugalkishore Prabhatilal Sharma and the two petitioners who are Vijaychandra Prabhatilal Sharma and Gnaneadra Prabhatilal Sharma on the basis that they are the partners of the said firm and they are liable to satisfy the decree. The learned Judge accordingly issued notices to all those four persons.

(2.) The present petitioners filed their objections Ex. 24 and raised a dispute that they were not the partners nor are they partners of Sorority Body Builders. Another contention raised before that Court was that they were not earlier served with summons and no decree is passed against them. Therefore without following the procedure provided by Order XXI Rule 50 of the Civil Procedure Code the decree cannot be executed against them. The learned Civil Judge relying upon an extract from the register maintained by the Registrar of Firms came to the conclusion that defendants Nos. 3 and 4 were the partners and ate still continuing as partners of the said firm and therefore the decree can be executed against them. The learned Civil Judge was also of the view that if Vijaychandra and Gnanendra had raised a contention that they were not the partners of the said firm or that they wore not served as partners in the suit in that case they should have challenged the decree passed against them and as they had not done so they are liable to make payment under the decree. Taking this view the learned Civil Judge ordered that the decree be executed against them and has also issued a warrant for that purpose. Aggrieved by that order passed below Ex. 1 in Regular Darkhast No 231 of 1981 Vijaychandra and Gnanendra have filed this revision application.

(3.) If we look at the decree it becomes apparent that the decree has keen passed against Variety Body Builders. There is nothing on record to show that the petitioner sere served with summons in the suit which was filed against the firm. There is nothing on record to show that they were adjudged as partners of the said firm. there is also nothing to show that they were individually served as partners of the said firm. It is therefore urged by the learned Advocate appearing for the petitioners that the Executing Court should not have proceeded with execution of the decree against the petitioners in view of the provisions contained in Rule 50 Order XXI of the Civil Procedure Code. He submitted that according to sub-rule (2) of Rule 50 of Order XXI it was necessary for the decree-holder to apply to the Court which passed the decree to adjudicate whether the petitioners were or are the partners of the debtor-firm and unless the Court passing the decree decides the liability in the manner provided the Executing Court could not have ordered execution of the decree against the petitioners.